Tuesday, September 13, 2005

Below are partial transcripts of the hearing for chief justice nominee John Roberts in the Senate.

A headline from the Associated Press on the confirmation hearing read, "Roberts Dodges Specifics on Abortion."

Yep, Roberts did a whole lot of dodging; and the Republican chairman did a whole lot of scolding.

For your perusal...

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SPEAKERS:

U.S. SENATOR ARLEN SPECTER (R-PA)CHAIRMAN
U.S. SENATOR ORRIN G. HATCH (R-UT)
U.S. SENATOR CHARLES E. GRASSLEY (R-IA)
U.S. SENATOR JON KYL (R-AZ)
U.S. SENATOR MIKE DEWINE (R-OH)
U.S. SENATOR JEFF SESSIONS (R-AL)
U.S. SENATOR LINDSEY O. GRAHAM (R-SC)
U.S. SENATOR JOHN CORNYN (R-TX)
U.S. SENATOR SAM BROWNBACK (R-KS)
U.S. SENATOR TOM COBURN (R-OK)

U.S. SENATOR PATRICK J. LEAHY (D-VT)RANKING MEMBER
U.S. SENATOR EDWARD M. KENNEDY (D-MA)
U.S. SENATOR JOSEPH R. BIDEN JR. (D-DE)
U.S. SENATOR HERBERT KOHL (D-WI)
U.S. SENATOR DIANNE FEINSTEIN (D-CA)
U.S. SENATOR RUSSELL D. FEINGOLD (D-WI)
U.S. SENATOR CHARLES E. SCHUMER (D-NY)
U.S. SENATOR RICHARD J. DURBIN (D-IL)

WITNESSES:JUDGE JOHN ROBERTS,NOMINATED TO BE CHIEF JUSTICE OF THE UNITED STATES

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SPECTER: We recognize that stare decisis embodies an important social policy that represents an element of continuity in law and is rooted in the psychological need to satisfy reasonable expectations.

ROBERTS: [T]he importance of settled expectations in the application of stare decisis is a very important consideration.

The principles of stare decisis look at a number of factors. Settled expectations is one of them, as you mentioned. Whether or not particular precedents have proven to be unworkable is another consideration on the other side -- whether the doctrinal bases of a decision had been eroded by subsequent developments.For example, if you have a case in which there are three precedents that lead and support that result and in the intervening period two of them have been overruled, that may be a basis for reconsidering the prior precedent.SPECTER: But there's no doctrinal basis erosion in Roe, is there?ROBERTS: Well, I feel the need to stay away from a discussion of particular cases. I'm happy to discuss the principles of stare decisis.

ROBERTS: Well, again, I think I should stay away from discussions of particular issues that are likely to come before the court again. And in the area of abortion, there are cases on the courts docket, of course. It is an issue that does come before the court.

SPECTER: Judge Roberts, in your confirmation hearing for the circuit court, your testimony read to this effect, and it's been widely quoted: Roe is the settled law of the land. Do you mean settled for you, settled only for your capacity as a circuit judge, or settled beyond that?

ROBERTS: Well, beyond that, it's settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not. And it is settled as a precedent of the court, yes.
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LEAHY: Let's go to the president's power as commander in chief of the armed forces. He certainly has that power under the Constitution. look back to the time when you were a lawyer in the Reagan White House.
[...]

You [wrote a] memo suggests that Congress is powerless to stop a president who is going to conduct an unauthorized war. I really find that extremely hard to follow. And I imagine most Americans would.I'll give you a hypothetical. Congress passes a law for all U.S. forces to be withdrawn from the territory of a foreign nation by a set date. The president vetoes the law. The Congress overrides that, sets into law, You must withdraw by a certain date.Now, is there any question in your mind that the president would be bound to faithfully execute that law?

ROBERTS: Well, Senator, I don't want to answer a particular hypothetical that could come.
before the court, but I'm happy to comment on the memorandum that you're discussing.

LEAHY: No, wait a minute. I mean, isn't this kind of hornbook law? I don't know of any cases coming before the court; I mean, this is kind of hornbook.The Congress says to the president, You got to get out, and pass a law which is either signed into law by the president or you override a presidential veto. Why wouldn't the president have to -- charged as he is under the Constitution to faithfully execute the law, why wouldn't he have to follow that law?

LEAHY: Does Congress, then, have the power to stop a war?ROBERTS: Congress certainly has the power of the purse. And that's the way, as you noted earlier, that Congress has typically exercised...

LEAHY: Yes, but we know, we did that in the Boland amendment. And the Reagan administration, as we found out in the sorry chapter of Iran-Contra, went around that, violated the law, worked with Iran, sold arms illegally to Iran -- I think that's one of the axis of evil today -- to continue the Contra war in Central America. So the power of the purse -- we've cut off money, but the wars sometimes keep going.Do we have the power to terminate a war? We have the power to declare war. Do we have the power to terminate war?ROBERTS: Senator, that's a question that I don't think can be answered in the abstract. You need to know the particular circumstances and exactly what the facts are and what the legislation would be like, because the argument on the other side -- and as a judge, I would obviously be in a position of considering both arguments, the argument for the legislature and the argument for the executive. The argument on the executive side will rely on authority as commander in chief and whatever authorities derive from that.

LEAHY: You said -- your answer is that you were just talking about the question of veterans' benefits...

ROBERTS: Well, Senator, I don't want to answer a particular hypothetical that could come before the court, but I'm happy to comment on the memorandum that you're discussing.

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KENNEDY: In considering the issues raised by Brown, the court took a broad and real-life view of the question before it. It asked, Does segregation of children in public schools solely on the basis of race, even though physical facilities and other tangible factors may be equal, deprive the children of the minority group of equal educational opportunities?So do you agree with the court's conclusion that the segregation of children in public schools solely on the basis of race was unconstitutional?

ROBERTS: I do.

KENNEDY: And do you believe that the court had the power to address segregation of public schools on the basis of the equal protection clause of the Constitution?

ROBERTS: Yes.

KENNEDY: I’m just trying to find out, on the Voting Rights Act, whether you have any problem at all and trouble at all in terms of the constitutionality of the existing Voting Rights Act that was extended by the Congress.

ROBERTS: Oh. Well, the existing Voting Rights Act: the constitutionality has been upheld. And I don't have any issue with that.

SPECTER: Let him finish his answer.

SPECTER: Let him finish his answer, Senator Kennedy.

SPECTER: Let him finish his answer, Senator Kennedy.

SPECTER: Let him finish his answer. That was a quite long question.

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GRASSLEY: Given your views on judicial restraint, can you tell us to what extent you feel obliged to uphold a decision which you found not to be based on the original intent of the Constitution?Could you explain what factors or criteria you might use to evaluate to see whether a decision deviated from original intent, whether it should be overruled?

ROBERTS: Well, again, you would start the precedent of the court on that decision. In other words, if you think that the decision was correctly decided or wrongly decided, that doesn't answer the question of whether or not it should be revisited.You do have to look at whether or not the decision has led to a workable rule. You have to consider whether it's created settled expectations that should not be disrupted in the interest of regularity in the legal system. You do have to look at whether or not the bases of the precedent have been eroded. Those are the main considerations that the court has articulated in a case like Dickerson, Payne v. Tennessee and the others. These are all the factors that the court looks at.Obviously, a view about the case presents the question, but the court has emphasized it's not enough to think that the decision is wrong, to take the next step to revisit it an overrule.


GRASSLEY: During your tenure at the solicitor general's office, didn't you sign on to a number of briefs that urged the Supreme Court to adopt a broad interpretation of the Voting Rights Act, its new requirements, and to require expansive remedies when states violate the act? And didn't some of those briefs take the same side as the ACLU, the Mexican-American Legal Defense and Education Fund, and the Lawyers' Committee for Civil Rights Under the Law?

ROBERTS: Yes, it was the responsibility of the Justice Department and before the Supreme Court, of course, the Office of the Solicitor General, to enforce the civil rights laws, and particularly the Voting Rights Act, as vigorously as possible.

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BIDEN: Do you agree that there is a right of privacy to be found in the liberty clause of the Fourteenth Amendment?

ROBERTS: I do, Senator. I think that the court's expressions, and I think if my reading of the precedent is correct, I think every justice on the court believes that, to some extent or another.Liberty is not limited to freedom from physical restraint. It does cover areas, as you said, such as privacy. And it's not protected only in procedural terms but it is protected substantively as well. Again, I think every member of the court subscribes to that proposition.

[...] [I]f these questions come before me either on the court on which I now sit or if I am confirmed on the Supreme Court, I need to decide those questions with an open mind, on the basis of the arguments presented, on the basis of the record presented in the case and on the basis of the rule of law, including the precedents of the court -- not on the basis of any commitments during the confirmation process.

SPECTER: Let him finish his answer, Joe.

SPECTER: Senator Biden, let him finish.

SPECTER: Wait a minute, Senator Biden. He's not finished his answer.

SPECTER: Senator Biden, let him finish.

SPECTER: Now, wait a minute. Let him finish his answer, Senator Biden

SPECTER: You may finish, Judge Roberts.

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KYL: But as all of us with any involvement in sports knows, no two umpires or no two referees have the same strike zone or call the same kind of a basketball game. And ballplayers and basketball players understand that depending upon who the umpire is and who the referee is, the game can be called entirely differently.

[…]

Would a neutral umpire have overturned a 58-year-old Supreme Court precedent and gone against the understanding of the authors of the Fourteenth Amendment and also the views of almost half of the state legislatures at that time in making the decision that they made?

ROBERTS: Well, Senator, I think the answer to your question is yes…I think a very good case can be made about their views.

[…]My point is simply that, if you look at the Brown decision, it is more consistent with the Fourteenth Amendment and the original understanding of the Fourteenth Amendment than Plessy v. Ferguson.

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KOHL: Judge Roberts, yesterday you described your role as a judge as just an umpire, as you called it, calling balls and strikes. And that's an interesting analogy for me, as I have, more than most, some personal experience with umpires and referees.

KOHL: But as all of us with any involvement in sports knows, no two umpires or no two referees have the same strike zone or call the same kind of a basketball game. And ballplayers and basketball players understand that depending upon who the umpire is and who the referee is, the game can be called entirely differently.
When we look at real legal cases, I wonder whether or not your analogy works.

KOHL: Judge, back in 1954, clearly the Supreme Court justices were willing to step outside the box, to break new ground, to do something that no one, no court, no legislature, no president had done before and strike out in an entirely new and positive direction for this country.They were not umpires simply calling balls and strikes. They were breaking new ground. And they did so in the best interests of our country, didn't they?

ROBERTS: Of course it was a dramatic shift. And the overruling of Plessy v. Ferguson was exactly that. ROBERTS: My point is simply that, if you look at the Brown decision, it is more consistent with the Fourteenth Amendment and the original understanding of the Fourteenth Amendment than Plessy v. Ferguson.

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